Exclusive Representation

When a union is selected to represent employees in an "appropriate" unit of
workers, the union alone has the legal authority to speak for all employees, including
those who neither voted for nor joined the labor organization. No other union, individual
or representative may negotiate terms and conditions of employment, and the individual
employee is effectively deprived of the opportunity to represent his or her own interests.

This is known as the doctrine of exclusivity which the U.S. Supreme Court upheld in a
1944 case, J.I. Case v NLRB. 6

Under the doctrine of exclusivity, the interests of union officials win out over the
interests of nonunion workers. The NLRA and related labor laws are usually portrayed as
benefiting employees, but the laws take away legally and practically an individuals
right to price his or her own labor and to work under conditions which are personally
agreeable. The sale of an employees labor is a private, nongovernmental activity.
Unions are voluntary, private organizations clothed by law with the legal power to advance
their interests, even when the unions interests conflict with the personal goals of
those employees whom they exclusively represent.

Collective bargaining, by its nature and without exception, involves a trade off of
individual interests so that the group as a whole may benefit. Unions typically defend
exclusivity by promoting it as a principle of majority rule and analogizing it with
congressional elections. A member of the House of Representatives represents all citizens
in a district, not just those who voted for the representative, so the argument goes.

The democratic majority rule argument may sound good, but in a union only setting it is
not an apt comparison. Unions are private institutions. They make decisions in private,
nongovernmental matters. They are private organizations operating in the workplace that
are granted exclusive bargaining status by government. In other countries, notably France,
exclusivity is not mandatory and several unions may compete in the same workplace.
Majority rule is less burdensome to individual workers in places where exclusivity is not
mandated.

Freedom for individual employees demands a bright line of distinction between private
and governmental actions. Individuals should be empowered to make choices in accordance
with their best intereststo go along with the majority or notexercising either
choice without penalty. But under the NLRA, collective bargaining contracts penalize a
worker who refuses to side with the majority under threat of losing his or her job.
Exclusive representation is equivalent to granting governmental coercive power to unions,
even in circumstances where an individual employee might be harmed.

As a quid pro quo for the right of exclusivity, the union is required to
represent all employees in the bargaining unit, whether or not they are union members,
fairly, in good faith, and without hostility or discriminatory or arbitrary conduct.

This is known as the unions duty of fair representation, and it is a federal
obligation that was judicially created, dating back to the 1944 Railway Labor Act (RLA)
case of Steele v Louisville & Nashville Railroad. 7 There the
Court held that the Railway Labor Act implicitly "expresses the aim of Congress to
impose on the bargaining representative . . . the duty to exercise fairly the power
conferred upon it in behalf of all those for whom it acts, without hostile discrimination
against them." 8

Almost ten years later, the Supreme Court applied the fair representation principles
developed in the RLA cases to the NLRA. 9 In 1962 the NLRB decided Miranda
Fuel Co., 10 holding that a breach of the duty of fair representation
amounted to an unfair labor practice under the NLRA. The Board decided that "Section
7 [of the NLRA] . . . gives employees the right to be free from unfair or irrelevant or
invidious treatment by their exclusive bargaining agent in matters affecting their
employment." 11

Beck rights are founded on this theory of the unions breach of the duty of
fair representation.